Hari vs The District Collector, ...
2023 Latest Caselaw 1144 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                      WP(C) NO. 13818 OF 2012
PETITIONERS:

     1       HARI
             AGED 41 YEARS
             S/O.GOPALAKRISHNAN NAIR, NADUKKUDIYIL HOUSE,
             KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE
             PIN-686691
     2       BINDU
             W/O.HARI, NADUKKUDIYIL HOUSE,KOTHAMANGALAM KARA,
             KOTHAMANGALAM VILLAGE, PIN-686691
             BY ADVS.SRI.C.DILIP
             SRI.P.N.VIJAYAN NAIR

RESPONDENTS:

     1   THE DISTRICT COLLECTOR, ERNAKULAM DSITRICT
         KAKKANAD, ERNAKULAM-682030
    2    DEPUTY TAHSILDAR(REVENUE RECOVERY),
         KOTHAMANGALAM, PIN-686691
    3    THE VILLAGE OFFICER
         KOTHAMANGALAM, PIN-686691
    4    DISTRICT LABOUR OFFICER
         DISTRICT LABOUR OFFICE, KAKKANADU, KOCHI-33
 ADDL.R5 THE CHAIRMAN
         KERALA BUILDING AND OTHER CONSTRUCTION WORKERS
         WELFARE BOARD, DPI, VAZHUTHACAUD,
         THIRUVANANTHAPURAM, PIN-695014.

             (ADDL.R5 IMPLEADED AS PER ORDER DATED 22/03/2012
             IN IA.NO.01/2022).
             BY ADV GOVERNMENT PLEADER SRI.K.M.FAISAL


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   18.01.2023,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C).No.13818/2012

                                    2




                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
                    W.P.(C).No.13818 of 2012
              ----------------------------------------------
            Dated this the 18th day of January, 2023


                              JUDGMENT

This writ petition is filed with following prayers:

i. Call for the records of the case leading up to Exhibits P2 & P3 and set aside the same by issuing a writ of certiorari or any other writ order or direction.

ii. Issue a writ of mandamus directing the third respondent to re- assess the building under the provisions of The Building And Other Construction Workers' Welfare Cess Act, 1996 after considering the objections raised by the first petitioner and also after giving notice to the purchaser of the building under Exhibit P1. iii. Issue any other writ order or direction as this Hon'ble court may deem fit and proper in the facts and circumstances of the case.

(SIC)

2. According to the petitioners, they were in joint

ownership of 10.500 cents of land comprised in survey WP(C).No.13818/2012

Nos.1142/11B/2 and 1142/11A of Kothamangalam Village and

a residential building was constructed therein. The residential

building in the property was constructed in the year 1999 and

according to them, they spent a sum of about Rs.5 lakhs for

the construction purpose. It is the case of the petitioners that

on 15.09.2003 they transferred the property in the name of

Mr.P.P.Varghese as per registered sale deed No.4862/2003 of

Kothamangalam S.R.O for a total sale consideration of

Rs.4,80,000/- out of which Rs.3 lakhs is the value of the

building shown. Ext.P1 is the sale deed. It is submitted that

the building which was constructed by the petitioners in the

year 1999 was an ordinary low cost house with cement

concrete flooring. Under the provisions of the Building and

Other Construction Workers' Welfare Cess Act and the rules

framed there under, cess is calculated based on the materials

used for the construction of the floor. But, according to the

petitioners, the 3rd respondent assessed the cess for

Rs.14,338/- and it was arrived on taking the construction cost

at the rate of Rs.8,800/- per sq.meter, which is the tariff fixed

for granite flooring as per notification. On receipt of notice of WP(C).No.13818/2012

assessment in the year 1999, the petitioners filed their

objection stating that the value of the building is not correctly

assessed by producing materials is the contention raised in the

writ petition. After filing objections against the notice of

assessment, it is the case of the petitioners that they did not

receive any intimation, notice or order from the assessing

authority and no enquiry was conducted by the assessment

officer till the property was transferred in the year 2003.

Thereafter the petitioners received Exts.P2 and P3 revenue

recovery notice to pay an amount of Rs.14,338/- with interest

at the rate of 24% from 05.11.2009. The notices issued by the

2nd respondent were served to the petitioners through

respondents 3 and 4. Aggrieved by the same, this writ petition

is filed.

3. Heard the learned counsel for the petitioners and

the learned Government Pleader. Even though notice was

issued to the 5th respondent, there is no appearance.

4. The counsel for the petitioners reiterated the

contentions raised in the writ petition. The Government

Pleader takes me through paragraph 8 of the counter affidavit

and submitted that Ext.R4(f) is the final assessment order WP(C).No.13818/2012

based on which the revenue recovery proceedings were

initiated.

5. This Court considered the contentions of the

petitioners and the respondents. The petitioners' case is that,

they submitted objection to the notice of assessment and the

same is not considered. It is also the case of the petitioners

that no final assessment order was served to the petitioners

and the petitioners only received the revenue recovery

proceedings after submitting their objection. The petitioners

have got a contention that the assessment made by the

assessing authority is not in accordance to law and the

subsequent transferee is also liable to pay the cess amount. I

do not want to make any observation about the merit of the

case. According to the petitioners, Ext.R4(f) is not served to

the petitioners and the revenue recovery proceedings are

initiated without serving the final determination order. There

is a specific case to the petitioners that the assessment order

is passed without considering the objection raised by the

petitioners. If that be the case, I think an opportunity can be

given to the petitioners to re-agitate the matter. For the

purpose of reconsidering the matter, the final assessment WP(C).No.13818/2012

order and revenue recovery proceedings can be quashed.

Therefore, this writ petition is allowed in the following

manner:

1. Exts.R4(f), P2 and P3 are quashed.

2. The 4th respondent is directed to reconsider the

matter, after affording an opportunity of hearing

to the petitioners and other affected parties, as

expeditiously as possible.

Sd/-

                                       P.V.KUNHIKRISHNAN
JV                                            JUDGE
 WP(C).No.13818/2012





                 APPENDIX OF WP(C) 13818/2012

PETITIONER EXHIBITS
EXHIBIT P1        COPY OF THE SALE DEED NO.4862/2003 OF
                  KOTHAMANGALAM S.R.O.
EXHIBIT P2        COPY OF THE NOTICES DATED 30.05.2012
                  ISSUED BY THE SECOND RESPONDENT
EXHIBIT P3        COPY OF THE NOTICES DATED 30.05.2012
                  ISSUED BY THE SECOND RESPONDENT
RESPONDENT'S
EXHIBITS
EXHIBIT R4(A)     COPY OF THE NOTICE DATD 28.9.2007
EXHIBIT R4(B)     COPY OF THE ORDER DATED 19.12.2007
EXHIBIT R4(C)     COPY OF THE REPLY SUBMITTED BY THE
                  PETITIONERS
EXHIBIT R4(D)     COPY OF THE LETTER DATED 27.11.2008
EXHIBIT R4(E)     COPY OF THE LETTER DATED 13.5.2009
EXHIBIT R4(F)     COPY OF THE FINAL ASSESSMENT ORDER
                  DATED 6.10.2009
EXHIBIT R4(G)     COPY OF THE SHOW CAUSE NOTICE DATED
                  11.5.2010
EXHIBIT R4(H)     COPY OF THE CESS ADALATH NOTICE DATED
                  8.8.2011